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SCOTUS Hands Down Ruling on Current Visa Process

Posted by Matthew Green | Jun 11, 2014 | 0 Comments

In most cases, immigrants who are considered to be minors, living in the U.S., and waiting on visas will be required to start the process again when they turn 21-years-old. This is according to a new U.S. Supreme Court ruling on Monday, June 9th. The federal law at issue needed to be interpreted by the Court and led to a narrow, 5-4 ruling.

As highlighted by a recent article, the questions in the case involve “whether those seeking permanent status under a family preference provision, but then ‘age out' because of the often lengthy visa approval process, have a right to appeal the agency's order reassigning them to the adults-only category.”

The 5-4 majority ruled the same way as the Obama administration in that the BIA (Board of Immigration Appeals) made a “‘reasonable interpretation of what the court called ‘ambiguous language' in the immigration application rules.” When there is ambiguity, a court will generally look to the agency's interpretation, as the Court did here.

The Supreme Court heard an appeal from Rosalina Cuellar de Osorio, who applied for visas for both herself and her 13-year-old son. The entire process took so long that the son actually turned 21 while their case was pending. At that point, he lost his “automatic conversion and priority date retention.”

Since he lost his priority date, he was required to return to the “back of the line” and begin the process again. This meant waiting an additional two years for the visa.

In reference to Cuellar de Osorio's son, Justice Elena Kagan stated that “[i]n the unavoidably zero-sum world of allocating a limited number of visas, the board could decide that he belongs behind any alien who has had a lengthier stand-alone entitlement to immigrate.” Justice Kagan went on to say that if the Supreme Court were to “overturn the board in that circumstance, we would assume as our own the responsible and expert agency's role. We decline that path.”

In line with the Court's ruling is the fact that there will be only a small group of visa applicants who will maintain eligibility under the Child Status Protection Act. This means that they are allowed to keep their priority underage status throughout the immigration process.

Under current law, the federal Immigration and Nationality Act (INA) permits U.S. citizens and lawful permanent residents to petition for “certain family members to obtain visas to immigrate to the country or to adjust their status to that of a lawful permanent resident alien.”

In many Supreme Court cases, the issue can come down to ambiguity and in these situations, it is not uncommon for the Justices to disagree. Here, Chief Justice John Roberts agreed that the board's findings were reasonable, but he disagreed with Justice Antonin Scalia about what made the law ambiguous in the first place. Justices Sonia Sotomayor, Samuel Alito, Stephen Breyer and Clarence Thomas dissented.

Meanwhile, the country is still waiting to see some form of legislation passed in the area of immigration reform.

About the Author

Matthew Green

Managing Partner. Green | Evans-Schroeder (formerly Law Offices of Matthew H. Green) focuses on the aggressive defense of immigrants. A native of Arizona, Mr. Green understands the difficulties that immigrants and families of immigrants face when a loved one is charged with a crime. He knows how frightening it can be for some...


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